People. Wildlife. Conservation.

The Importance of Participation. By Ian Cox.

We all know how important the right to vote
is, right? We will all mostly probably reply, if asked, that the right to vote
in free and fair elections is what makes our country a democracy. However I
wonder how many South Africans realise that they would only be half right and
that our democracy rests on two legs rather than just one? I suspect not that
many.

If the right to choose our government is
the one leg that keeps our democracy upright and stable, the other leg is the
right we all have to participate when government makes laws.

The Constitutional Court describes this
really well in Doctors
for Life case. The key passage is at paragraph 115 of the judgement but in
short, ongoing public participation strengthens democracy, builds trust in
government and restores human dignity.

We get to exercise this important right to
participate because government must publish draft legislation and regulation for
comment before it is made law. This is in addition to workshopping the law with
stakeholders before and after the law is published for comment.

Basically government must notify the public
of the proposed new law by publishing the notice in the Government Gazette and
at least one national newspaper. The notice must also contain sufficient
information in order to enable the public to comment meaningfully thereon. The
public then have a period of time, normally 30 days, within which to respond.
Provision must be made to take representations orally if the proposed law
affects people whose writing skills are limited.

Pretty straightforward you would think. You
would be wrong. Environmental authorities routinely publish notice that only
set out the law. No additional information or context is supplied. Thus the
public does not know for example why a particular species is to be declared
invasive or why a species must be listed as protected or even how it was that
an activity came to be listed as having a significant environmental impact. To
make matters worse they often do so despite complaints from the public that
insufficient information has been provided.

Sometimes, I suspect quite a lot of the
time, the notice is also not published in a newspaper.

No big deal you might think. After all, we
are used to government riding roughshod over us. At least government went to
the trouble of engaging with stakeholders. Government has also published the
draft for comment. It used to be a lot worse, so be grateful for what you have.

Environmental authorities would agree with
you. They point to the fact that proposed laws are “science based” and often
follow a process of extensive stakeholder engagement before they are published
for comment. Government argues that this is good enough and that if there has
been any transgression, it was inadvertent or immaterial.

Our courts do not agree. According to our
courts when you mess with these rules, you are messing with something that is
as important as the right to vote. So it should not be surprising that court
after court all the way up to the Constitutional Court is throwing laws out
because government did not obey these simple rules. The Rhino Horn Moratorium was
declared invalid for this reason. It was also why the Restitution of Land
Rights Amendment Act, which purported to reopen the lands claim process, was
declared invalid.

Who knows how many other environmental laws
are similarly affected? I think that it is a lot. In fact I think we have a bit
of a crisis on our hands.

I also think, that while might have been possible to deal with this
crisis systemically, this is no longer the case today. I think the crisis has
gone beyond its tipping point. If I am right and if our environmental
authorities do nothing to address the issue, then I think we are going to see:

Rapidly declining trust in the
integrity of our environmental authorities accompanied by a decline in their
effectiveness as environmental managers.

Increasing levels of bad
behaviour by people emboldened by the idea that they can get away with it.

A rise in the practice of one
off deal making rather than systematic and principled environmental management.

None of this augers well for our
environment or the long term health and wellbeing of South Africans.